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Does section 2(a) of Public Officer’s Protection Act apply to cases of contract?

The 2nd respondent was the plaintiff before the High Court of Bauchi State sitting in Bauchi in a suit he filed on March 6, 2007 against the 1st and 2nd appellants and the 1st respondent.

Eng. Zubairu Yakubu & Anor v. Ministry of Housing Environment, Bauchi State & Anor
CITATION: (2020) LPELR-49482 (CA)

In the Court of Appeal
In the Jos Judicial Division
Holden at Jos

Suit No: CA/J/93/2014

Before Their Lordships:

2. MOHAMMED SAFFULLAH – Appellant(s)
2. YAYARI SIDI – Respondent(s)


The 2nd respondent was the plaintiff before the High Court of Bauchi State sitting in Bauchi in a suit he filed on March 6, 2007 against the 1st and 2nd appellants and the 1st respondent.

At the High Court, the 2nd respondent contended that he was allocated shop No. 53, Wunti Shopping Complex Bauchi vide a letter of allocation issued by the 1st respondent through its Chief Executive dated February 3, 2005, which was tendered and admitted as Exhibit LD 1. In the said letter, the 2nd respondent was to pay a total sum of N600, 000 to the 1st respondent through Yankari Saving and Loan Limited. It is his case that he paid the said sum by two installments of N500, 000 and N100, 000 on February 21, 2005 and December 29, 2005 respectively. Receipts for the payment were tendered and admitted in evidence as Exhibit LD 2 and LD 3. Consequent upon the foregoing payments, the Yankari Saving and Loan Limited issued to the 2nd respondent a letter of confirmation of payment, which will authorize the 1st respondent to release the keys of the shop to the 2nd respondent. The said letter was tendered and admitted as Exhibit LD 4.

When the 2nd respondent presented the letter (Exhibit LD 4) to the 1st appellant, who was the Permanent Secretary in the 1st respondent’s Ministry, he was allegedly abused and insulted by the 1st appellant (Eng. Zabairu Yakubu). At that time, it was alleged that the 1st appellant had allocated the shop to himself using the name of his son (2nd respondent) as a crony. The 2nd respondent contended that as at that time, 2005, the 1st and 2nd appellants had not made any payment on the shop. It was on January 30, 2007 when the suit by the 2nd respondent was pending that payment was made. It was also his contention that the appellant did not tender any letter of allocation of the said shop but lately produced a certified letter of confirmation of payment dated November 9, 2010 (Exhibit Waziri 1). Based on the foregoing, 2nd respondent instituted an action at the High Court claiming, amongst other an order of specific performance compelling the defendants to deliver up possession or allow the plaintiff access to the said shop No. 53 Wunti shopping complex, Bauchi being the original and rightful allotee of the said shop.

Parties joined issues and the matter proceeded to trial, at the end of which the trial judge gave judgment in favour of the 2nd respondent. Aggrieved by the judgment, the appellants appealed to the Court of Appeal.

The Court determined the appeal on the following issues: (1)Whether from the fact and evidence, the trial Court has jurisdiction to adjudicate upon the suit No. BA/52/2007 filed by the 2nd respondent as plaintiff in the lower Court and against the appellants as 1st and 2nd defendants in the Lower Court. (2) Whether the trial Court was right to enter judgment in favour of the Plaintiff in respect of the relief not sought by him before it. (3) Whether in view of the evidence led, the trial Court was right to have entered judgment for the Plaintiff.

(4) Whether it is the duty of Plaintiff to rely on the strength of his case and not on the weakness of the defendant’s case? (5) Whether absence of the reference number and use of paper not being used by the 3rd defendant in its custom and traditions in respect of Exhibits LD 1 makes it in law suspicious as to its originality and authenticity?

On issue one, counsel for the appellants contended that the High Court had no requisite jurisdiction to adjudicate over the suit filed by the 2nd respondent as plaintiff. This is because the 1st appellant as 1st defendant before the High Court, was the Permanent Secretary of Bauchi State Ministry of Housing, Environment and resident in Bacuhi. The 1st respondent as the 3rd defendant before the High Court is a Ministry of Bauchi State Government (Government Agent). Therefore, both the 1st appellant and 1st respondent are public officers. The alleged act said to have been done by the 1st appellant was done in his capacity as Permanent Secretary, Ministry of Housing and Environment, Bauchi State.

Counsel further contended that the cause of action arose in February 2005 and the 2nd respondent filed his suit on March 14, 2007 which is a period of two years from the date when the cause of action arose. He submitted that the failure of 2nd respondent to file his suit within the time limited by law robbed the High Court of the requisite jurisdiction to adjudicate on the matter. He relied on Section 2(a) of the Public Officer Protection Act Cap. P41, Laws of Federation of Nigeria, 2004.

On issues 2, 3, 4 and 5, the contention of the appellants is that the High Court erred in entering judgment in favour of the plaintiff in respect of relief not sought. It was argued that the respondent as plaintiff only claimed the cost of the action simplicita but the Court in its judgment suo motu assessed and awarded cost of filing the suit. Counsel added that there is no sufficient evidence before the Court to grant such award. On whether in view of the evidence led, the trial Court was right to have entered judgment for the 2nd respondent, Counsel contended that from the evidence led, the 2nd respondent was not entitled to an order of specific performance.

His argument is that the 2nd respondent’s evidence is that he got the allocation letter, Exhibit LD1, on 3rd February, 2005 from the 1st respondent and he made his first payment of N500, 000 on February 21, 2005 and paid the balance of N100, 000 on December 29, 2005 i.e. more than 10 months after instead of within 30 days as contained in the allocation letter Exhibit LD1. Therefore, the 2nd respondent neglected to comply with the condition of the allocation. He failed to make the complete payment within 30 days as prescribed in Exhibit LD1. He added that he who seeks equity must show that he is vigilant and do all that is required of him to enforce it. He referred to the case of NLEWEDIM V UDUMA (1995) 30 LRCNPg. 113 at 115-116 R. 2 and 3 and 5, F.G.N. V. ZEBRA (2003) 105 LRCN Pg. 363 at 369 R. 11. In concluding arguments on the issues, counsel contended that Exhibit LD1 raised some suspicion as to its originality and authenticity because it bore no reference number and that it is contained in a different paper compared with what the 1st respondent by tradition used. He urged the Court to discountenance Exhibit LD1. He relied on the case of UDEH V. OKOLI (2009) 7 NWLR (PT. 1141) pg. 571 at 575 to 577 R. 4.

Arguing the issues, counsel to the respondents contended that the decision of the High Court is unassailable and on firma terra, regard being had to the pleadings of the parties and the evidence on record. He added that the trial Court took its time to properly evaluate the evidence on record before coming to specific finding and conclusion. He submitted that evaluation is the primary responsibility of a trial Court and that where the record of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to same before coming to a conclusion and making a finding of fact, the appellate Court will not interfere with the conclusion nor substitute its own view for that of the trial Court. He referred to the following cases AKINLOYE VS EYIYOLA (1968) NMLR 92 AT 93, AJIBULU V AJAYI (2014) 2NWLR (PT. 1392) 483, IKUMONIHAN V STATE (2014) 2 NWLR (PT. 1392) 564 and MOGAJI V. ODOFIN (1978) 4 SC 91.

He added that the pleading of the 2nd respondent is well rooted. Cogent oral and documentary evidence establishes the case of the 2nd respondent as the person to whom shop No. 53, Wunti Shopping Complex, Bauchi State was allocated. He paid the agreed sum and relevant authority confirmed his payment. Therefore, the appellants have no valid right or interest whatsoever on the subject matter.

In resolving the first issue, the Court stated that by virtue of Section 2(a) of the Public Officers (Protection) Act Cap. P41, LFN. 2004, an action against a public officer must be brought within three months. Where an action is brought against apublic officer outside the time prescribed under that law, such proceedings should not be entertained by the Court, because it is statute barred. Going further, the Court stated the principle of law as regards the effect of a statute-bared action and how to determine whether or not an action is statute barred. Applying the trite principles of law to the instant case, the Court held that the relationship between the parties is a contractual one and Section 2(a) of the Public Officers (Protection) Act Cap. P41, LFN. 2004 does not apply to cases of contract. The Court cited the case of OSUU S. C. ODUKO V. GOVT OF EBONYI STATE OF NIGERIA AND 3 ORS (2004) 13 NWLR (Pt. 891) pg. 487 at 493 in support. Based on the forgoing, the Court held that the suit of the 2nd respondent was not statute barred and the High Court therefore had the jurisdiction to entertain it.

In resolving issues 2, 3, 4 and 5, the Court held that the Appellant’s complaint that the High Court erred in entering judgment in favour of the plaintiff in respect of relief not sought is unfounded and of no probative value. This is because, even though the 2nd respondent asked for cost of action and the Court christened it cost of filing the action, they are one and same thing. The general rule is that cost follows event and a successful party is entitled to cost. The award or refusal of cost is at the discretion of the Court provided it is exercised judicially and judiciously. See NIGERIAN ATIONAL PETROLEUM CORPORATION (NNPC) PENSION LIMITED V. VITA CONSTRUCTION LTD (2016) LPELR – 41259. The Court stated further that the purpose of award of cost is for the purpose of meeting the legitimate expenses of the successful party either wholly or partially as the Court may deem fit. See ADEBUYI LAYINKA AND ANOR V. ADEOLA MAKINDE & ORS (2002) 10 NWLR (PT. 775) 358.

On whether in view of the evidence led, the High Court was right to have entered judgment for the Plaintiff, the Court stated the trite position of the law that it is the duty of a trial Court to adequately evaluate the evidence adduced in a case and make appropriate finding of fact in respect of all issues arising in the case and material to the determination of the case. See T.A.O. WILSON AND ORS v. A.B. OSHIN &ORS SCNLR 1215 at 1240 and A. R. MOGAJI AND ORS V MADAM RABIATU ODOFIN AND ORS (1978) 4 SC 91. In determining which party’s case is preferable, the trial judge, after a summary of all the facts must put the two set of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more and acceptable in preference to the other and then apply the appropriate law to it. See the case of MUSA SHA (JNR) & ORS V DA RAP KWAN ANDORS (2000) 8 NWLR (PT. 670) 685 at 705.

Applying the above principles to the instant case, the Court held that the evidence of the 2nd respondent that he paid for the shop by two instalments of N500, 000 and N100, 000 making up the N600, 000 was not disputed. The Exhibits he tendered were not disputed also. Rather, the witnesses of the appellant confirmed the authenticity of the signature on Exhibit LD1. Therefore, the complaint as to Exhibit LD1 having no reference number is of no substance. From the foregoing, the Court held that the High Court properly evaluated the evidence before it and applied the appropriate law before arriving at its decision.

In the final analysis, the Court held that the appeal lacked merit and dismissed it.
A. A. Samuel Esq.
-For Appellant(s)
A. H. Umar Esq.
-For Respondent(s)

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